01a14953
10-31-2002
Carlestine Clark, Complainant, v. Defense Logistics Agency Agency.
Carlestine Clark v. Defense Logistics Agency
01A14953
10/31/02
.
Carlestine Clark,
Complainant,
v.
Defense Logistics Agency
Agency.
Appeal No. 01A14953
Agency No. JH-99-003
Hearing No. 310-99-5743X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Crane Operator at the agency's
Oklahoma City, Oklahoma facility, filed a formal EEO complaint on October
19, 1998, alleging that the agency had discriminated against him on the
basis of race (African-American) when he was not selected for the WG-9
Crane Operator position.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race discrimination because he failed to raise an inference
of discrimination. In that regard, the AJ noted that complainant
argued that the agency discriminated against him when it transferred
a crane from his facility in Oklahoma City to a facility in McAlester,
Oklahoma. As a result, the position no longer supported the WG-9 grade.
The AJ also found that the individuals complainant alleged to have
held a discriminatory motive against him because of his race were not
responsible for the decision to move the crane to McAlester, Oklahoma.
Indeed, the AJ found no evidence of a discriminatory motive underlying
the decision to move the crane. Finally, the AJ found complainant
failed to establish he was treated differently than a similarly situated
individual outside of his protected class. In that regard, the AJ noted
that although an individual was temporarily promoted to the WG-9 position,
that promotion was later cancelled.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
was not promoted to the WG-9 position because the remaining equipment in
Oklahoma City did not justify the promotion to the higher graded position.
The AJ found that the crane was moved to remove scrap from the McAlester
facility. Finally, the AJ found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination.
On July 10, 2001, the agency issued a final order that implemented the
AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
He also argues that the facility has failed in its efforts to increase
minority representation. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We note that complainant failed to present sufficient evidence that any
of the agency's actions were motivated by a discriminatory animus toward
complainant's race. Although there was some witness testimony surrounding
a possible discriminatory bias on the part of some individuals,
complainant failed to present any evidence that these individuals were
responsible for the decisions at issue. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
10/31/02
Date